Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant/Cross-Respondent.
Stephen D. Trinen, Pierce County Prosecutors Ofc, Tacoma, WA, for Respondent/Cross-Appellant.
¶ 1 A jury convicted Odies Walker of first degree murder, first degree assault, first degree robbery, solicitation, and conspiracy for his role in the murder and robbery of an armored truck driver inside a Walmart. Walker appeals his convictions, arguing that the " to convict" premeditated murder instruction violated his due process [178 Wn.App. 480]rights because it allowed the jury to convict him as an accomplice without proving that the principal committed all of the elements of the crime. Because accomplice liability law allows a jury to convict participants without unanimously determining which participants satisfied which elements of the crime, we hold that the jury instructions were not erroneous.
¶ 2 In the unpublished portion of the opinion, we address Walker's additional arguments that (1) the prosecutor committed numerous instances of misconduct and (2) his trial counsel was ineffective for failing to request a cautionary instruction on accomplice testimony and for failing to object to the prosecutor's misconduct. We also consider Walker's statement of additional grounds (SAG) arguing that the trial court erred by denying his motion for a CrR 3.6 hearing. We hold that none of the alleged prosecutorial misconduct committed requires reversal, counsel was not ineffective, and the trial court correctly denied Walker's CrR 3.6 motion because the items to be suppressed were within the scope of a valid search warrant. We affirm.
¶ 3 In June 2009, Calvin Finley and Marshawn Turpin killed and robbed an armored truck driver inside the Lakewood Walmart. Finley shot and killed Kurt Husted, a Loomis armored truck driver who was picking up the store's daily earnings. The bullet went through Husted and struck a bystander, injuring the bystander's shoulder. Turpin grabbed the bag of money on Husted's cart, and he and Finley fled the store to a white Buick waiting in the parking lot. A witness later identified Walker, who is Finley's cousin, [178 Wn.App. 481]as the driver of the Buick, and police recovered Walker's fingerprint on the driver's side seatbelt.
¶ 4 Police were able to trace the Buick because a witness had memorized a partial license plate number. The Buick was registered to Sartara Williams, the mother of Finley's child. At Finley's request, Williams falsely reported the vehicle stolen in April and gave Finley the keys. The Buick was parked behind Walker's house under a tarp for a few months, until the robbery in June. After the robbery, the police found the Buick in an alley behind Finley's friend's house. Neighbors had seen Finley, Walker, and another man in the area that same afternoon. One of the men was carrying a bag behind his back.
¶ 5 About 30 minutes after the robbery, Walker returned to Walmart to pick up Turpin's car. He then went home, where his girl friend, Tonie Williams-Irby, found him watching the news, when she returned from work.
¶ 6 Walker and Williams-Irby picked their children up from school, then Walker drove to the alley where the Buick was parked, telling Williams-Irby that he needed to wipe fingerprints off the car. The Buick was surrounded by police when they arrived, so Walker kept driving.
¶ 7 Walker next drove his family to Al Trevino's house. On the way, Walker told Williams-Irby that he was in the Buick and on the phone with Finley during the robbery. When Finley asked the guard for the money, the guard laughed, so Walker told Finley to " kill the mother fucker." 8 Report of Proceedings (RP) at 729.
¶ 8 Finley and Turpin were at Trevino's when Walker and Walker's family arrived. Walker, Finley, and Turpin went into Trevino's bathroom and changed clothes. They put their clothes and a Loomis bag into a black plastic bag. Walker then put two $10,000 bundles of cash in Williams-Irby's purse and gave her $2,500 in cash to pay bills. Walker also threatened Trevino, telling him that it was " on [his] life and [his] family" if he said anything. 10 RP at 1143.
[178 Wn.App. 482]¶ 9 Trevino, Finley, and Turpin left Trevino's house together. Trevino drove them down near the river, where he saw Finley run in the direction of the river with the black plastic bag. Finley did not have the bag with him when he returned to the vehicle. Trevino then drove Finley to a motel.
¶ 10 Walker left Trevino's house with his family and drove to the Federal Way Walmart where he purchased two safes and a Nintendo Wii with cash. Walker gave one safe to Finley and put the other in the master bedroom closet at Walker's house. Walker put the $20,000 in cash into the closet safe. Williams-Irby put the cash Walker had given her for bills in an envelope that she placed in her dresser drawer. Walker then took his family out to dinner, where he paid with cash. While at dinner, he told Williams-Irby's son, " [T]his is how you do it. This is how you murder these niggers and get this money." 8 RP at 773.
¶ 11 On his way back from the restaurant, Walker was stopped by the police, who had received a tip that he was involved in-the robbery and murder. The police arrested Walker and Williams-Irby. They obtained a search warrant for Walker's house. They found a safe in the master bedroom closet containing $20,000, an envelope containing $900 in the dresser, and ammunition for a 9 mm handgun— the same type of weapon used to shoot the guard— in the closet.
¶ 12 During questioning, Walker denied any involvement in the robbery. He admitted that he had seen the armored truck arrive at Walmart many times while he was waiting to pick up Williams-Irby, a manager at Walmart, from her shift. He also admitted that he had been at Walmart after the robbery to pick up Turpin's car.
¶ 13 The police arrested Finley the next day in Trevino's wife's car. The police searched the trunk of the car and discovered a safe containing $21,830 in cash.
¶ 14 The State charged Walker as an accomplice with (1) aggravated first degree premeditated murder, (2) first [178 Wn.App. 483] degree felony murder further aggravated by a high degree of planning and a destructive and foreseeable impact on persons other than the victim, (3) first degree assault, (4) first degree robbery, (5) first degree solicitation to commit robbery, and (6) first degree conspiracy to commit robbery. The State also sought deadly weapon enhancements for the murder, assault, and robbery charges.
¶ 15 At trial, Williams-Irby, Darrell Parrott, Jessie Lewis, and Jordan Lopez all testified that they heard Walker planning to rob the armored truck at Walmart months before June 2009. Walker had attempted to recruit both Parrott and Lewis for the robbery. In May, Walker asked Parrott to be back up for Finley, telling Parrott that he would have to carry a gun. Parrott refused. Around the same time, Walker told Lewis about his plan. He told Lewis that Lewis's job would be to
shoot the guard and that he, Walker, would be the getaway driver. Walker then drove Lewis and Finley to Walmart to show them how the plan would work. Walker knew the timing of the armored truck's arrival and how many guards went into the store each time. Walker offered both Finley and Lewis guns; Finley took a gun but Lewis refused. Finley and Lewis entered the store after the guard. Lewis left the store before the guard retrieved the money because he was nervous about the plan and " knew that someone was going to get killed." 9 RP at 912. Although Walker did not try to recruit her, Lopez twice overheard Walker discussing his plans to rob Walmart with Lewis and Finley.
¶ 16 Williams-Irby also overheard Walker discussing his plans to rob Walmart on numerous occasions. In February 2009, Walker started asking Williams-Irby, who sometimes attended Walmart staff meetings where the previous day's earnings were announced, how much money the armored truck picked up each day. Walker mentioned that he thought the armored truck would be " easy money." 7 RP at 656. In March, Williams-Irby heard Walker yelling at Finley and someone named Jonathan about the plan to rob Walmart. [178 Wn.App. 484] Walker was angry that it was taking so long and was worried that Jonathan would make a mistake. He told the others that they would all go to jail if there was a mistake and that he would get the most time because he planned it. In April, she heard Walker discussing the robbery with Finley and Turpin. She heard Walker say that he would be the getaway driver because he was a better driver than the others and he would be recognized if he entered the store, where he used to work as a greeter. She also heard Walker and Finley discussing killing the armored truck guard. Walker told Finley to " do what you got to do" and then he offered Finley a 9 mm handgun. 7 RP at 665. On the morning of the robbery, Williams-Irby called Walker to report Walmart's earnings for the previous day.
¶ 17 Walker attempted to challenge Williams-Irby's credibility on cross examination, pointing out that she had initially told the police that neither she nor Walker was involved in the robbery and that she had entered a plea deal with the State. Walker repeatedly asked Williams-Irby if she had told the State what it wanted to hear. Williams-Irby consistently replied that she knew the State wanted the truth. She also said " My desire is to tell the truth and get closure for Mr. Husted's family." 8 RP at 822. Walker asked, " The truth is determined by [the prosecutor] isn't it?" 8 RP at 815. Williams-Irby replied that " [t]he truth is determined by what happened" and that she was " telling the truth whether [the prosecutor] want[s] to hear it or not." 8 RP at 815, 818.
¶ 18 The jury found Walker guilty as charged. The jury also found that the State had proven all of the alleged aggravating circumstances and that Walker or an accomplice was armed with a firearm during the murder, assault, and robbery. The trial court sentenced Walker to life plus 303 months.  Walker appeals his convictions. The State cross appeals, arguing that the trial court erred in its jury instructions.
[178 Wn.App. 485]ANALYSIS
PREMEDITATION JURY INSTRUCTIONS
¶ 19 First, Walker argues that the trial court's premeditation instructions violated his due process rights because (1) they relieved the State of its burden of proving the charged crime and (2) they violated his right to a unanimous verdict. Specifically, he asserts that the trial court's premeditation instructions were erroneous because, under the first degree murder and accomplice liability statutes, the State had to prove that Finley, the shooter, had premeditated intent to kill the guard and, here, the instructions allowed the jury to find Walker guilty if it found either he or Finley had premeditated intent to kill the guard. We hold that the trial court's instructions properly stated accomplice liability law.
¶ 20 We review jury instructions de novo. State v. Levy, 156 Wash.2d 709, 721, 132 P.3d 1076 (2006). Jury instructions are
sufficient if, when read as a whole, they accurately state the law, are not misleading, and permit each party to argue its theory of the case. State v. Clausing, 147 Wash.2d 620, 626, 56 P.3d 550 (2002).
¶ 21 Under the first degree premeditated murder statute, the State must prove that the defendant, with premeditated intent, caused the death of another person. RCW 9A.32.030(1)(a). A person may be liable for the acts of another if he acts as an accomplice. RCW 9A.08.020. A person is an accomplice if, with knowledge that it will promote or facilitate the commission of a crime, he solicits, commands, encourages, or requests another person to commit the crime or aids or agrees to aid another in planning or committing the crime. RCW 9A.08.020(3)(a).
¶ 22 The trial court gave the following instructions regarding premeditation: " A person commits the crime of premeditated murder in the first degree, as charged in Count I, when, with a premeditated intent to cause the [178 Wn.App. 486] death of another person, he or an accomplice causes the death of another person." CP at 213.
To convict the defendant of the crime of premeditated murder in the first degree, count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about 2nd day of June, 2009, the defendant or an accomplice acted with intent to cause ...